Citation Nr: 21021215 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-08 390 DATE: April 12, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s sleep apnea did not manifest in service and is not otherwise related to his military service. CONCLUSION OF LAW Sleep apnea was not incurred in active service. 38U.S.C. §§1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1969 to January 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied entitlement to service connection for sleep apnea and hypertension. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In August 2020, CAVC granted a Joint Motion for Remand (JMR) that vacated and remand the October 2019 decision that denied entitlement to service connection for sleep apnea and hypertension because the Board did not discuss entitlement to service connection based on the Persian Gulf presumptions contained in 38 C.F.R. § 1117 and 38 C.F.R. § 3.317. The appeal has returned to the Board for further appellate consideration. 1. Entitlement to service connection for sleep apnea The Veteran seeks entitlement to service for sleep apnea. To establish service connection, the evidence must generally show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3§.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for sleep apnea. The Veteran has asserted that his sleep apnea began in service. He has stated that he began experiencing symptoms for years prior to his diagnosis of borderline obstructive sleep apnea in November 2002, including loud snoring, daytime sleepiness requiring naps, and gasping for air. See November 2002 private treatment records; August 2019 VA examination report. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of sleep apnea. On the November 1992 report of medical history, he denied having any past or present frequent trouble sleeping. Post-service medical records from 1993 to 2002 also show that he received routine medical care, but he was never evaluated for a sleep disorder prior to 2002. The earliest reference to sleep apnea symptoms in the post-service medical records was in October 2002, which was over nine years after his separation from service, when he was referred for a sleep study. He was first diagnosed with borderline obstructive sleep apnea in November 2002 following a polysomnogram. The Veteran has asserted that he developed sleep apnea during his military service. He has reported symptoms including snoring and daytime fatigue since the 1980s. See August 2019 VA examination report. With regard to other lay statements of record, his wife of 37 years, N.C., attested to snoring and hypersomnolence during the mid-1980s and 1990s. She indicated that, after his retirement, he continued to snore loudly at night, progressing to interrupted breathing and gasping for air. N.C., who is a registered nurse, convinced him to see his physician, and he was then diagnosed with sleep apnea in 2002. See September 2012 lay statement from N.C. The Veteran has also submitted lay statements from E.B. and R.S., who served with him on board the USS America and shared a berthing compartment. They stated that the Veteran snored loudly at night and had difficulty sleeping. See September 2012 lay statement from E.B.; November 2018 lay statement from R.S. The Board does acknowledge the lay statements that the Veteran’s symptoms began in service and continued since that time. The Board notes that the Veteran and other laypersons are competent to report his experience and symptoms in service and since that time. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his current sleep apnea, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset, other risk factors, and the internal processes involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although symptoms may have been observed, the laypersons are not competent to diagnose sleep apnea. The Veteran’s wife is a registered nurse, but she did not rely on any testing, such as a sleep study. Rather, she reported the symptomatology that she witnessed. As discussed in more detail below, a VA examiner explained that such symptoms are not necessarily indicative of sleep apnea at that time. For these reasons, the Board finds that sleep apnea did not manifest in service. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current sleep apnea to the Veteran’s military service. The August 2019 VA examiner noted that a sleep evaluation in November 2002 found a class I malocclusion, an enlarged tongue with a full base, an elongated uvula and soft palate, and Mallampati Class IV narrowed airway. His weight at that time was 155 pounds. See August 2019 VA examination report. Similarly, in March 2009, a sleep specialist identified several risk factors for sleep apnea, including an elongated uvula, low-lying soft palate and Friedman III airway. Id. The August 2019 VA examiner considered the medical history, including the reports of loud snoring and interrupted breathing during service. She opined that the Veteran’s sleep apnea is less likely than not related to his military service, explaining that a formal monitored overnight sleep study is necessary to make a clinical diagnosis of sleep apnea and reports of gasping and loud snoring during active service are not sufficient to establish a diagnosis. The examiner stated that, when formally studied, snoring is often diagnosed without apnea events. She observed that the Veteran was not referred for a sleep study until 2002 and indicated that, to presume loud snoring is the same as apnea, would be resorting to mere speculation. The VA examiner indicated that, in the Veteran’s specific case, the risk factors with the highest predictive value are natural age over 50 years in combination with an elongated uvula, low-riding palate, and excessive redundant tissue of aging at the time of diagnosis. The examiner opined that the preponderance of medical evidence and expertise reveals the proximate cause of his obstructive sleep apnea to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of body mass index (BMI) (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues). These facts indicate that his sleep apnea is less likely than not caused by, related to, or aggravated by his military service. There is no medical opinion otherwise relating the Veteran’s current sleep apnea to his military service, including any symptomatology therein. Additionally, the Veteran has failed to cite any evidence of record to support the assertion that his diagnosed sleep apnea qualifies as a medically unexplained chronic multi-symptom illness under § 3.317. However, the August 2019 VA opinion fully explained that this Veteran’s sleep apnea is medically attributable to a natural age over 50 years in combination with an elongated uvula, low-riding palate, and excessive redundant tissue of aging. The Board affords substantial probative weight to the August 2019 VA examiner’s opinion. The examiner reviewed the claims file and medical literature. She also has training, knowledge, and expertise on which she relied to form her opinion. In addition, she specifically addressed the lay statements and contentions and provided a thorough rationale for the conclusion reached. The Board further notes that sleep apnea is not listed as a chronic disease under 38 C.F.R. § 3.309(a), and lay statements of continuity of symptomatology alone are not sufficient to award service connection under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. As determined by the August 2020 JMR, vacatur and remand of the decision on appeal are warranted because the Board failed to provide an adequate statement of reasons or bases for its denial of Veteran’s service connection claims. More specifically, the Board did not discuss entitlement to service connection based on the Persian Gulf presumptions contained in 38 C.F.R. § 1117 and 38 C.F.R. § 3.317. The Board acknowledges that the Veteran has been awarded the Southwest Asia Service Medal with three stars and the Kuwait Liberation Medal. See Certificate of Release of Discharge from Active Duty (DD 214). Therefore, the Board finds the Veteran qualifies as a Persian Gulf War Veteran. Additionally, the Veteran is diagnosed with essential hypertension, which is defined as high blood pressure in which secondary causes such as renovascular disease, renal failure, pheochromocytoma, aldosteronism, or other causes of secondary hypertension or mendelian forms are not present, i.e. the underlying cause cannot be determined. Accordingly, a remand is necessary to ensure that VA obtains an examination or medical opinion that adequately discusses whether the Veteran’s essential hypertension may be service-connected on a presumptive basis pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to the Veteran’s claimed conditions and associate them with the claims file. 2. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. Then, schedule the Veteran for an appropriate Gulf War examination to determine the nature and origin of his essential hypertension. The evidentiary record must be made available to and be reviewed by the examiner. Any indicated tests and studies should be performed. The examiner should respond to the following: The examiner must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension: a) had its onset in service or is otherwise related to the Veteran’s service, to include his service during the Persian Gulf War; OR b) is related to a chronic multi-symptom disability. If the examiner finds the Veteran’s condition manifested in symptoms related to a chronic multi-symptom disability, the examiner should state whether the disability (i) results from a clear and distinct etiology; (ii) partially unknown etiology; or (iii) an unknown etiology. In providing the above opinions, the examiner should discuss the criteria for diagnosing hypertension, consider the service treatment records reflecting that in April 1988, November 1992, and December 1992 the Veteran experienced elevated blood pressure, and explain whether “essential” hypertension would be considered a medically unexplained illness. The examiner must provide clearly stated rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. If the examiner is unable to provide the required opinion, he or she should explain why. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.